Last Wednesday, the Superior Court issued its eagerly anticipated opinion on reconsideration... a complete 180:

[W]e hold that [a party's] subpoena seeking documents from [the opposing party's] expert witness was beyond the scope of Pa.R.C.P. 4003.5, without first showing cause as to why such a discovery request was needed. Furthermore, the written communication between counsel and an expert witness retained by counsel is not discoverable under the Pennsylvania Rules of Civil Procedure to the extent that such communication is protected by the work-product doctrine, unless the proponent of the discovery request shows pursuant to Pa.R.C.P. 4003.5(a)(2) specifically why the communication itself is relevant. As such, we also hold that Pa.R.C.P. 4003.3 immunizes from discovery any work product contained within the correspondence between [the attorney] and [the expert witness].

The second issue is exactly the kind of narrow-applicability issue I've been whining about all season (it's ok to call Supreme Court terms "seasons," right?). But... that first issue is just the kind of broad-applicability issue I've been hoping for!

Judicial deference to agency interpretation isn't really a hot topic that will generate mainstream media attention though. I'm still waiting for the Court to take on a big discrimination issue that will generate some buzz. I know, I know... I'm never satisfied.

Friday, November 25, 2011

It's a holiday, so we'll keep this Case of the Week short but satanic sweet. CBS News reports on a man who claims he was terminated because he refused to wear a sticker displaying the number of accident-free days at the factory.

Why did he refuse to wear the sticker? Well, he was ok with displaying the number of accident-free days on days 1 through 665. But then came day 666... According to the CBS article, the man feared that wearing "the mark of the beast" would "doom him to eternal damnation."

Let's be honest... sounds stupid. But sincerely held religious beliefs should lead to reasonable accommodation (and the interactive process and all that good stuff), even if it sounds silly. So, in theory, it's at least a plausible lawsuit.

Largent is a vehicle collision case in which the plaintiff claims serious injuries requiring her to use a cane. She also claims she suffers from mental pain and depression. Defense counsel found out that her Facebook page was once open to the public and showed photos of the plaintiff having fun with her family and a status update about going to the gym.

Now, the defendant has filed a motion to compel the plaintiff to hand over the keys to her Facebook page (username and password). The Court first addressed the plaintiff's claim of "privilege and privacy":

[T]here can be little privacy on a social networking website. Facebook’s foremost purpose is to "help you connect and share with the people in your life." That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.

Strike one!

The plaintiff next claimed protection under the Stored Communications Act (SCA). However, the SCA only applies to ISPs, including electronic communications services (ECS) and remote computing services (RCS). Notably, it does not apply to individual users. Strike two!

Finally, the plaintiff challenged the breadth of the discovery request. The Court basically points out that she put her health at issue in this case and has waived her privacy interest. The Court also noted that the only two Pennsylvania cases to address this issue compelled discovery (while there are also two that did not compel discovery, neither order included an opinion). Strike three! You're Out!

The Court granted the motion to compel and ordered:

[T]hat Plaintiff Jennifer Largent shall turn over to Defense counsel her Facebook username email and password within 14 days of the date of this Order. Plaintiff shall not delete or otherwise erase any information on her Facebook account. After 35 days from the date of this Order, Plaintiff may change her Facebook login password to prevent further access by Defense counsel.

Another Pennsylvania social networking discovery case in the books. We're still waiting for that first appellate opinion though...

Friday, November 18, 2011

In PhoneDog, an employee had a work-related Twitter account. When he left PhoneDog, he took his Twitter account and its 17,000 followers with him. Now, PhoneDog has filed a lawsuit in federal court accusing him of conversion and misappropriation of trade secrets. Here, the trade secrets are the Twitter password and the follower list.

One form of jurisdiction in federal courts, diversity jurisdiction, requires that the parties be from different states and that the amount in controversy exceeds $75,000. How does Plaintiff establish that the Twitter account was worth more than 75 Grand? "No problem" says Plaintiff:

PhoneDog alleges that the account generated approximately 17,000 followers, which according to industry standards, are each valued at $2.50 (per month). Thus, PhoneDog contends that its damages amount to $42,500 ($2.50 x17,000) for each month that Mr. Kravitz has used the account, which at the time of filing amounted to $340,000 for eight months.

Cha-ching! The Court buys it, at least for purposes of surviving a motion to dismiss (a very low bar). So, Plaintiff's claims are allowed to proceed. If this case makes it to summary judgment, it could provide some good legal analysis of 1. Who owns a Twitter account when the employee running it leaves? and 2. How much is a Twitter account worth?

At this point, I'll note that my Twitter account (@PhilipMiles) has 1,800 followers. That's $4,500/month or $54,000/year (and growing!). I should just quit my job and sit on the couch drinking Franziskaner, watching Saved by the Bell re-runs, and tweeting during the commercial breaks (don't judge me). If somebody could just be so kind as to drop a comment about how exactly I collect this $2.50/follower/month . . . . Until then, I think I'll keep my day job ;-).

Wednesday, November 16, 2011

- Who knew the Employee Free Choice Act (EFCA) had a fight song? Check out "Up the Union" by Street Dogs, with lyrics like "Support the E-F-C-Aaaa" (feat. Dropkick Murphys lead singer, includes profanity)

The facts are complicated and involve numerous claims of discrimination, harassment, and retaliation. One interesting component, is a retaliation claim brought by two union members against their union. The employees claimed the union discriminated against them by not assisting them with their claims.

Here's where it gets interesting! The union issued an "Update on Legal Issues" which stated:

Local 4420 members Jerry Brown and Anthony Booth have filed a Charge claiming unspecified discrimination with the U.S. Equal Employment Opportunity Commission against the Union and the County. The Executive Board and our attorney feel it is a frivolous claim with no grounds for support and we are extremely confident in winning but will still have to defend the charges. This could be very costly and generate a legal bill of $10,000 or more. If it becomes too costly the Union may have to assess its member’s additional fees to offset the cost. We will update you as it progresses.

The employees now claim this is retaliation, and turned them into "social pariahs." The Court is letting the issue go to trial.

Prof. Volokh disagrees, and thinks the speech is protected by the First Amendment and the Court's decision is "quite wrong." He also highlighted some union-specific issues under the circumstances:

Unions are self-governing institutions, funded by members and answerable to their members. If union leadership is accused of discrimination, union members need to know the leadership’s reaction, so they can decide whether they should remove the leadership. If the union is having to spend money, which comes from union members, the members deserve to know that. And if fellow union members are working against the interest of the union, union members likewise deserve to know that.

The Court did not see a First Amendment problem. It didn't spend much time on the issue, but did note that:

See what I did in the title there? An old school Wayne's World "...Not!" joke (they're still cool, right?). The NLRB had originally announced a new poster requirement that would take effect today. If you're like me and had an Outlook reminder set to go off today, go ahead and hit the snooze button. As I announced previously, the NLRB pushed the date back to January 31, 2012.

Friday, November 11, 2011

I know, I know - it's way too early to start thinking about Christmas. But when I see a good Case of the Week pop up, I can't wait until after Thanksgiving just to be seasonal!

So, employers, what do you get the employee on your list who has everything? Beats me. But, I can tell you what you don't get him - a picture of Santa Claus in KKK gear, holding a noose, standing in front of a burning cross, wishing the employee a "White Christmas."

Not surprisingly, the employer who allegedly did send such season's greetings now faces a lawsuit. In an interview, one of the employees described his reaction: "It scared me, because I have a wife; I took it as a threat, that they were saying they're trying to kill me."

You can read more here, including a video showing the offending image and interviews with the plaintiffs. I have embedded the video below (may not display for email subscribers - click here to view online):

On its face, it's an easy distinction: a settlement ends a lawsuit, a severance ends an employment relationship. If an employee sues an employer, the parties can exchange money (from the employer) for voluntary dismissal of the lawsuit (from the employee) - a settlement. If an employer ends the employment relationship, it often gives an employee money to transition out of their employment - a severance.

Easy enough. What's the confusion? Well, a severance agreement usually includes more than just an exchange of employment termination for cash. It includes other terms, such as a waiver of claims. The waiver usually includes discrimination claims... including sexual harassment. So, the employee agrees not to file any discrimination lawsuits, and receives money (or other benefits) in exchange.

Now, let's say the employee makes an internal complaint of sexual harassment before termination. Well, the severance agreement starts to sound a little bit more like a settlement agreement, doesn't it? The employer is paying the employee, and the employee is dropping his or her sexual harassment lawsuit before it even gets filed. Essentially, it's a preemptive strike.

Returning to the original question: Is it a settlement or a severance? I think reasonable minds can differ. As a technical matter, an agreement to end the employment relationship with a waiver of future claims is a severance. As a practical matter, the employer is really just settling a lawsuit before it gets filed. You're all big boys and girls - I'll let you make the final determination yourselves.

Tuesday, November 8, 2011

Sexual harassment week continues. Last post I addressed What is Sexual Harassment? The gist was that successful sexual harassment claims are harder to establish than some people think. Today’s post comes at it from the other angle: getting rid of the bad claims (“bad” as in baseless) is also harder than some people think.

While reading Herman Cain stories, I often see comments paraphrased as, “if Cain didn’t sexually harass anyone, then why did they settle?” I find that people are often shocked at how hard it is to get rid of bad claims. Employers can't just send a letter to the judge: "Dear Judge, this is one of them there 'baseless' lawsuits. Please dismiss posthaste." And we're done! Sorry, it doesn't happen like that.

I’ll state again that I don’t know what happened with Cain. But let’s assume for the sake of argument that the claim against him was completely baseless – no evidence, silly claim, would have been a garbage lawsuit. How does an employer get rid of such a claim without settling?

Agency Investigation

- Before filing a lawsuit, the employee must go to the EEOC or equivalent state agency (for my PA readers, the PHRC).

- The employer may be called on to participate in negotiations or mediation.

- If the agency finds no evidence of discrimination or harassment, the agency will drop the case . . . but issue a “Right to Sue” letter to the employee.

At this point, months if not years have gone by. And only now does the lawsuit even begin.

Litigation

- If the employee files a Complaint that is obviously silly – or, even assuming everything in the complaint is true, still doesn’t constitute sexual harassment – the employer can move to dismiss the case. Even this involves drafting a motion to dismiss and a brief in support of it (with proper legal research and case citations).

Maybe, the case ends here. What about cases in which the employee’s complaint makes vague allegations, or just makes up a bunch of stuff with no evidence? The employer must then:

- Draft an Answer

- Written discovery: answering a bunch of questions from the plaintiff (interrogatories); identifying, reviewing, and providing documents to the plaintiff; and then serving the plaintiff with the employer’s own interrogatories and requests for production of documents.

- Depositions: Days worth of depositions in which attorneys question the plaintiff, witnesses, other employees (don’t forget the costs of hiring a court reporter to be there every day!).

- Summary judgment: If there’s still no evidence, the employer can file a motion for summary judgment with statement of material facts and brief in support (including legal research).

Phew, assuming there is no evidence and the motion for summary judgment is successful, it’s finally over (unless the employee appeals)! But only after years and easily tens of thousands of dollars in legal fees.

Still wondering why an employer might settle a bad claim? Next post: Settlement or Severance.

Sunday, November 6, 2011

This week, I'm writing a series of posts to address some sexual harassment issues that have popped up in the mainstream media lately. The issues arise from allegations made against Herman Cain. I want to emphasize that to date I have no idea what the actual allegations even are, let alone whether they are true. My purpose is not political, but informative.

Let's start with the most basic question: What is sexual harassment? Some recent commentary has suggested that there's a really low bar. A guy says something innocent and a woman takes offense... voila, sexual harassment! In fact, sexual harassment is pretty difficult to establish.

There are two main types of sexual harassment. The first is quid pro quo, or "this for that" harassment. Trading workplace favors for sexual favors, or imposing workplace penalties for withholding sexual favors. This is the creepy manager abusing his position to hit on subordinates.

Then there's "hostile work environment" harassment. Per the United States Supreme Court:

[S]exual harassment so "severe or pervasive" as to " 'alter the conditions of [the victim's] employment and create an abusive working environment' " violates Title VII . . . . [T]o be actionable under the statute, a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so.

Title VII does not prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." A recurring point in these opinions is that "simple teasing," offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the "terms and conditions of employment." These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code."

Id. I think that's a lot harder than some commentators acknowledge.

In short, sexual harassment has a pretty high bar. Of course, that's a high bar for a successful lawsuit. Next post: How hard is it to get rid of baseless sexual harassment claims?

Friday, November 4, 2011

The employment law Case of the Week is Walker v. Jackson, an EEOC decision from October 6, 2011 (sorry, no link but if you have Westlaw it's 2011 WL 4889255). It answers the age old question - if I get invited to a same sex wedding celebration, was I subjected to religious harassment? If you answered, "are you freakin' kidding me?" then congratulations! You and the EEOC agree (OK, the EEOC was a little more delicate).

But what if I complained about it and then had to endure people congratulating the employee on his "marriage?" (use of "quotes" is the Complainant's thing, not mine). Still no? Yes, still no.

The Complainant received the following email via a work distribution list:

[Employee A] and his partner [named] are getting married this Sunday. The IO is sponsoring an informal celebration to congratulate [Employee A] on this happy event. Please feel free to drop by the IO conference room on Thursday, October 7 at 4:30 P.M. to wish them well.

This prompted the Complainant to respond (FYI -apparently a "Reply All"):

I feel your message announcing the celebration of the “union” of [Employee A] and his “Partner” was offensive and insensitive to my religious faith as a Christian. I think it is general knowledge that the Christian faith only condones “marriages” between men and women, not men and other men. As acting Office Director, I feel you could have been more “sensitive” and “neutral” with regards to this issue.

So, what do you think happened next? "The next day, NCEA employees sent approximately 15-20 emails on the global list-serve (including Complainant) congratulating Employee A on his marriage." But, "[n]one of these emails specifically mentioned Complainant or his email."

This is not religious harassment. The Complainant was invited to a voluntary social gathering, and the congratulatory emails did not mention the Complainant or challenge his religious beliefs. Apparently one private email did question his religious beliefs but that's not enough to constitute a "severe and pervasive" hostile work environment.

Thursday, November 3, 2011

Under certain circumstances, a defendant who gets sued in state court can "remove" the case to federal court. Under federal law, defendants have 30 days from the date the plaintiff serves "the defendant" to file the notice of removal. 28 U.S.C. §§ 1441, 1446. But what happens when there are multiple defendants? When does the 30-day timer start?

We conclude that the later-served rule represents a better reading of the language § 1446(b) and results in more equitable treatment to later-served defendants. We join the Sixth, Eighth, Ninth, and Eleventh Circuits in adopting the later-served rule.

And what's the later-served rule? "[E]ach defendant has a thirty day period to file a notice of removal that ends thirty days after that defendant is served" (emphasis added).

The alternative, is the "first-served" rule, adopted by the Fourth and Fifth Circuits: "[T]he thirty day period ends thirty days after the first defendant is served" (emphasis added). Yup folks, it's a good 'ol fashioned circuit split! I suspect the Supreme Court will take a look at this issue one of these days. For now, parties just need to know their circuit.

Tuesday, November 1, 2011

I just created a page called Employment Law Tweets. I utilize a Twitter list, EmpLaw, which I created as a list of the top employment law Tweeters... or is it Twitterers? (purely based on my personal experience on Twitter - I assure you, it is not scientific)

If you're on Twitter, you can just go to the list and follow it, or check it out any time you'd like. However, I know some (many) of my readers don't have Twitter accounts. Now, they can simply go to the Employment Law Tweets page (there's also a tab/button at the top of this page) and see what my favorite employment law Tweeters are talking about. And it's right here on my your favorite blog!

I think it's a great way to stay current, and see the top employment law stories at any given time. Fair warning: I am not creating this content, and these crazy kids may tweet anything at any time - not my tweets, not my fault. Also, some of the people on the list occasionally tweet about things other than employment law.

Directories and Profiles

Lawffice Space - Pennsylvania and Federal Labor & Employment Law Blog

Produced by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania. McQuaide Blasko also has offices in Hershey and Hollidaysburg. Mr. Miles works in the firms's Litigation and Labor & Employment Law practice groups, providing legal services to employers and employees relating to human resources, employment discrimination, and other employment law issues.